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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone, and if you know one thing about Amy Coney Barrett by now, it's probably that she has seven children and would be the first woman justice ever on the Supreme court with school-aged children at home. Now, you probably never heard that her role model, the late justice Antonin Scalia had nine children while he was on the bench. Why are her children a selling point when his were not discussed?

Today is the second and final day of Amy Coney Barrett's testimony at her Supreme court confirmation hearings. Here's the clip from yesterday, and which the idea of liberal versus conservative womanhood came up around Barrett's gender and parental status. It's from Republican Senator, Joni Ernst of Iowa, who accused Democrats of saying Barrett would not be good for women without those Democrats trying to understand what kind of woman Amy Coney Barrett is.

Joni Ernst: I'm struck by the irony of how demeaning to women their accusations really are. That you a working mother of seven with a strong record of professional and academic accomplishment couldn't possibly respect the goals and desires of today's women.

Brian Lehrer: We will start there this morning. In a minute, we'll bring on Amanda Becker, Washington correspondent for the 19th, but let's make the call-in portion of this segment right now for women. Judge Barrett would be succeeding Ruth Bader Ginsburg. She would still only be the fifth woman ever on the Supreme court. Women listening right now, how much are you seeing the Barrett nomination in gender terms? 646 435 72 80, 646 435 72 80. What's your reaction to Senator Joni Ernst accusation there that Democrats are being ironically, she used the word irony, demeaning to women by saying judge Barrett and her work and family cred couldn't respect the goals and desires of today's women?

Is that even what you're saying if you're a democratic woman? 646 435 72 80, our lines are open for women callers, liberal or conservative or whatever you are politically, who would like to engage this question or say anything you would like to say about the Barrett nomination in the context of gender and gender equity in the United States. 646 435 72 80, 646 435 72 80.

I'll also be curious to hear how you think your party, whichever that is, or how you look at the two parties down there. If you are neither Democrat nor Republican, how the parties are handling the nomination, 646 435 72 80. For example, I was surprised yesterday, how little they talked about the legitimacy of the process even taking place, how little the Democrats talked about that considering that they consider it illegitimate even having a nominee right now as the election to decide the presidency and the makeup of the Senate is currently taking place.

I think we all remember when there was an opening in February of 2016 and senators, including Mitch McConnell and Lindsey Graham, who now is the judiciary chairman holding these hearings, they wouldn't even hold hearings for President

Obama's nominee, Merrick Garland, because the election was only nine months away, but here we are now obviously with an election already in progress and the Republicans have completely flipped on that, but I was surprised how little the Democrats brought it up in the hours of the hearing that I watched yesterday.

I might've thought they might even boycott or sit there and refuse to take Judge Barrett seriously in any way, and try to make the Republicans look like they were pretending that this is a legitimate process, but it all looked relatively normal like any other Supreme court confirmation of a Republican by a Republican, nominated by a Republican president from recent years, or don't you agree? 646 435 72 80, 646 435 72 80.

As your calls are coming in, we welcome Amanda Becker, Washington correspondent for The 19th, a nonprofit news organization, reporting on gender, politics, and policy. The 19th for those of you who don't know it yet as a new news organization just launched this summer around the 100th anniversary of the 19th amendment to the United States Constitution, which gave women, mostly white women in practice, the right to vote in 1920. Amanda's latest article is called, Has Susan Collins changed or have the rest of us?. Hi, Amanda, thanks for coming on. Welcome to WNYC.

Amanda Becker: Thank you, and thanks for having me.

Brian Lehrer: I don't know if you heard the clip of Joni Ernst that we played as we were getting your line hooked up, or if you heard her yesterday, but I'm curious if you see liberal and conservative ideas of modern womanhood or gender equity under the law clashing here.

Amanda: They are to a certain extent, first of all, you heard members just talking about gender more broadly. Before the ideological split, you heard senators from both parties asking her a lot about her children and her family. While you typically get into people's families a little bit in these confirmation hearings, I would have to go back and look at all the transcripts, but I would doubt that Justice Scalia, for example, fielded as many questions about his family during his own confirmation process and that's of course, Amy Coney Barrett's mentor on the Supreme court.

Then you did and see people like Senator Lindsey Graham saying you would not only be shattering a glass ceiling for conservative women, you would be shattering a concrete barrier. There is this kind of split among women and barriers, and a lot of conservative women don't really feel welcomed by the feminist movement, by the women's movement more broadly. You did see that play out to a certain extent the first two days of this hearing.

Brian Lehrer: The Democrats have carefully stayed away, it seems to me from the religious sect that Coney Barrett belongs to called People of Praise, which has gotten described as being very retro conservative in gender terms, seeing men as head of household, things like that. I read that Barrett herself used to be what the group used to call a handmaid, actually had that title and people can have had it in that sect. I guess they moved away from that now, but have you looked into that?

Amanda: I read more about People of Praise actually when she was going through her appeals court confirmation process when it was more of an issue. I think the reason that Democrats aren't asking her a lot about it right now, is because they stepped in it during that appeals court confirmation process when they did ask her a lot of questions about that. It was really painted by Republicans as an attack on her Catholic faith.

I think they knew going into this, the democratic senators, that that was not a good area of focus for them, that to maybe leave the personal and the personal and merely stick to how she might apply the personal, if at all, to the court and her decisions because we had-- You're right, we have not heard them ask many questions about that yet.

Brian Lehrer: Well, that's the issue, isn't it? Exactly what you said, people can have whatever gender or family relations or religious beliefs they want, and it should not come into play in judging somebody for office or a seat on the Supreme court, but the issue would be if she is there in part to establish her private religious beliefs. That's why they call it the Establishment Clause in the first amendment, partly so that individuals who are in power don't establish their religion as part of public law. Do you think the Democrats have asked that enough?

Amanda: They have certainly asked it a lot in many different ways as it applies to several different policy areas. I think that they will continue to ask her about that today and until this process ends. At one point yesterday, a quote that I had written down Amy Coney Barrett said, quote, "Judges can't just wake up one day and say, I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion and walk in like a royal queen and impose their will on the world."

Anytime a Democrat was questioning her yesterday, she really tried to make clear that she was going to separate her personal views from how she ruled on cases and that she had, quote, "Made no commitments to the White House," on any of these main issues that are up in these questions that we're hearing from the Democrats. There's really been a strong, strong focus on not just Roe v. Wade, which was expected the 1973 law that legalized abortion nationally but the Affordable Care Act and healthcare more broadly. We heard her say she is "Not on a mission to destroy the ACA," when she was asked by the democratic senators in a variety of ways about how she would rule on that issue.

That's the reality is the court has a case shortly after the election, about one week after the election, where they gut the ACA. This isn't a theoretical, this is a case the court will be hearing shortly after she joins it or she is confirmed. She talked about keeping her personal use out of that. She talked about keeping her personal views out of abortion. She has been very clear in her writings in the past that on a personal level and on a religious level, she does not believe abortion should happen from conception to birth, that that is just not something that comports with her faith.

She said over and over again yesterday that is her personal view and anything she said on that in the past is her personal view. Then she did also say she did not view

Roe v. Wade as being a super precedent, which would be something like Brown vs Board of Education is the example that a lot of people are using that ended segregation in schools. She said, "It's not that kind of case." It's just so decided that it could never be questioned and it isn't questioned right now. She went on to say, "But that doesn't necessarily mean it should be overruled." You saw her trying to walk a fine line on a lot of this by trying to separate how she would act as a jurist from her personal beliefs in her own life.

Brian Lehrer: Let's take a phone call. Kimberly in Manhattan. You're on WNYC. Hi, Kimberly, thanks for calling in.

Kimberly: Thanks. Long time listener. Well, I'm a Republican. Well, I was a Republican some 18 until two years ago when I got so disgusted that I switched to being an independent. I do have some things in common with Amy Coney Barrett, including her Christian faith but I don't think that she's being unfairly scrutinized for being a mother of a large brood of children because she's the one who brought it up first. It was practically the first thing out of her mouth when she was introduced in the Rose Garden and she's brought it up several times since. She has most of them sitting behind her. I don't really remember any of the male justices during their confirmation doing that.

I don't think that you can really have it both ways and she also doesn't seem bothered by people bringing up her position as a mother as well as a judge and a lawyer and other things. If she's going to introduce it into play, then it's fair for people to comment on it.

Brian Lehrer: Can I ask, since you brought it up, what made you move from Republican to Independent in 2018? You said you used to be a Republican but then you shifted to Independent in 2018 because you were so disgusted. What were you disgusted with?

Kimberly: Yes, well, I was not only a Republican, I was a black Republican growing up in New York City. The trauma with that is big. Try explaining that to most people in New York that you're black and Republican. Well, when Trump got elected in 2016, my intention was to hang in there because what a lot of people in this country forget but I as a native New Yorker know is that Trump was not a Republican so-called for most of his life, he was a Democrat. My feeling was, this guy is not going to run me out of my party that I've been in 10 times longer than he even has.

It got to the point, not just with him but with all the Republicans phones behind him and turning into invertebrate creatures without any spines whatsoever, that I couldn't do it anymore. I don't remember now what the precipitating event was but I just got to a point where it clicked in my head and I said, "I can't do this any longer. I've got to leave."

Brian Lehrer: Kimberly, thank you so much for your call. We really appreciate it. Crystal in Brooklyn, you're on WNYC. Hi, crystal. Thank you for calling in.

Crystal: Thank you so much, Brian, for having me on. I am just incensed watching

these hearings because it's just such-- In the black community, we have the saying, "All skin folk is not kinfolk," and that is directly to Amy Coney Barrett as a woman. Just because she happens to be a woman doesn't mean that she speaks for women or represents women's interests or anything to do with their best health or ideas at mind. The fact that the Republicans are holding her up as this pinnacle of motherhood and trying to use her motherhood as a guise to slide her in is ridiculous.

She sits there acting like everything is okay and she is this woman who has this career and she's wrangling these seven children. It's also this dangerous precedent of, "We are not doing it all. We are not okay. It is COVID." Mothers are doing the most all the time, and to have Coney Barrett sit there and say, "All is okay," and not even answer proper questions and for them to use her motherhood as a sounding board for her to be okay, is disgusting to me.

Brian Lehrer: Crystal, thank you very much for your call. Here's a clip that goes to the feeling that Crystal has and to the issues that Crystal was raising. It's Senator Kamala Harris who attended virtually yesterday asking a question of Amy Coney Barrett that brought in the Affordable Care Act, the number one issue raised by Democrats but also, race. Senator Kamala Harris.

Senator Kamala Harris: A pandemic that when age is taken into account has been three times as deadly for black, Latino, Pacific Islander, and Native Americans. A pandemic that has killed approximately 1 in 1000 black Americans, 1 in 1200 Native Americans, and 1 in 1500 Latino Americans. Would you consider the 135 million people who gained protections under the Affordable Care Act when deciding a case that challenges that law?

Amy Coney Barret: Senator Harris, if I were to be confirmed and conclude that I was not, that I was able to sit on the case pursuant to the recusal statute. Then if I heard the case and decided the case, I would consider all the protections that Congress put in place. As I said earlier during this hearing, the question would be figuring out whether Congress, assuming that the mandate is unconstitutional now, whether that consistent with your intent, this is Congress's law, would permit this act to stand or whether the flawed portion of it could just be excised out. That is a question not of what judges want. It's not a question of the Supreme court. It's a question of what Congress wanted in the statute.

Brian Lehrer: Amanda Becker from The 19th, to me in a certain respect, that clip was the entire, what was it? 11 hours of hearings [crosstalk] in a nutshell. Democrats were raising various versions of, "Judge, people are suffering here, real people with real lives. Women, people of color, others. Would you take their humanity into account or only the text on the page?" Then judge Barrett, who on the one hand is being sold as obviously having empathy because she's raising seven kids would give these very dispassionate legalistic answers. That was the whole 11 hours in a certain respect. I'm curious how you heard that exchange with Kamala Harris.

Amanda: You're right. We heard some variation of this exchange over and over and over again yesterday. I also remember Senator Leahy going through the millions of

people who were protected by various components of the Affordable Care Act, including young adults under the age of 26 and how many of them could lose their insurance if the Affordable Care Act is overturned by the court.

Amy Coney Barrett was giving me answers that frankly, a Supreme court nominee should. If you go back and you look through all the confirmation hearings in modern times and watch sections of them on key issues, a nominee is going to avoid to the extent that they can, hopefully in their mind, completely, answering any question about how they would rule on X, Y, or Z. They're going to just say, "I'll look at the statute as it's written," or "I'll look at how that comports with the constitution." I have never seen a Supreme court justice start to weigh in into how they would actually rule on something.

It's completely normal in that sense that she wouldn't answer those questions. It was the same for Brett Kavanaugh. It was the same for Neil Gorsuch several years ago. That is a very tried and true way to approach these questions if you're the one sitting in that seat because the minute you answer how you would rule on something, then it opens you up to a lot of litmus test type things. There's really just no upside for a potential justice to say how they would rule on something in advance.

Brian Lehrer: Let's take another call. Addie in Fort Lee. You are on WNYC. Hello, Addie.

Addie: Hi, thanks for taking my call. I have a question slightly different. I would like to know-- Excuse me, or have someone ask the nominee how she feels about the difference between church and state, how it's written in the constitution that one should not affect the other.

Brian Lehrer: Addie. Thank you. Did she get asked a version of that? That's another way to approach the question of what might be a fringy religious sect that she's a member of without treading on her personal right to have personal religious beliefs to put it directly to her like that about how she views separation of church and state. I didn't hear it.

Amanda: I didn't hear it either. Obviously, I had to eat lunch at some point yesterday. Took a couple of short breaks so it's possible that I missed it. I did not hear it asked in such a direct and general way. I heard variations of that and how she was asked about how she would deal with certain issues. Again, not emphasizing the religious part because I think Democrats are keen to avoid that this time around after what happened with her the last time, but Amy Coney Barrett has written on this topic in law journals. She has talked about when Catholic judges are making decisions, do they go with their faith or the law?

She had suggested at one point that they should recuse themselves from death penalty cases because they did not believe in the death penalty. She didget some more questions on recusal yesterday. I think we just heard that in the recent clip that we listened to and she didn't say whether she would recuse herself at some of these matters but I think that those questions also got at this church and state idea. Now, it's important to remember that on the Supreme court, if you're a justice, you decide

yourself whether you're going to recuse yourself from a matter or not. It doesn't go to some independent board that decides or something. It's up to you.

Essentially, because it's a nine-member court, a nine-justice court, if you recuse yourself, you are essentially voting for whatever the lower court decision was for that to stand. It's not something that you see that often on the court. That's one of the reasons why but some of those questions that got at this idea of recusal were the senators trying to bring in this idea of church and state.

Brian Lehrer: I want to play one more clip before you go and that is specifically about recusal and recusal on what might be the most hot-button issue that she might have to get to rule on. She might have to rule on or get to rule on if she doesn't recuse herself very quickly after the election, and that is things having to do with the election itself after President Trump said he was nominating her because he needed a nine or nominating anyone at this time because he needs a ninth justice on the Supreme court for election disputes. The question here comes from Democratic Senator Coons from Delaware.

Senator Coons: Given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?

Amy Coney Barret: Senator Coons, thank you for giving me the opportunity to clarify this because want to be very clear for the record and to all members of this committee that no matter what anyone else may think or expect, I have not committed to anyone or so much as signaled, I've never even written. I've been in a couple of opinions in the seventh circuit that have been around the edges of election law but I haven't even written anything that I would think anybody could reasonably say, "Oh, this is how she might resolve an election dispute." I would consider it-- Let's see.

I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people. That would be on the question of actual bias. You asked about the appearance of bias.

Senator Coons: Correct.

Amy Coney Barrett: You're right that the statute does require a justice or a judge to recuse when there's an appearance of bias. What I will commit to every member of this committee, to the rest of the Senate, and to the American people, is that I will consider all factors that are relevant to that question. Relevant to that question that requires recusal when there's an appearance of bias.

There is case law under the statute. As I referenced earlier in describing the recusal process at the Supreme court, Justice Ginsburg said that it is always done with consultation of the other justices. I promised you that if I were confirmed and if an election dispute arises, both of which are ifs, that I would very seriously undertake that process and I would consider every relevant factor. I can't commit to you right

now for the reasons that we've talked about before but I do assure you of my integrity. I do assure you that I would take that question very seriously.

Brian Lehrer: In a way, just like Kamala Harris clip that we played earlier with Amy Coney Barrett, that was the 11 hours, in a nutshell, Amanda. Judge Barrett not promising any particular action but promising she would take everybody's position in all the circumstances into account with integrity and an open mind.

Amanda: Yes. Earlier in the day, and at this point, I forget which Senator prompted this or elicited this response but it was about deciding the election and it was about how President Trump has openly said, "We need to get a ninth justice on there in case we need to decide the election." She would be that ninth justice. She used the word pawn. She said she would not be used as a pawn to decide this election and that she had not communicated with the White House about that.

That was the one time I heard her during the day bristle to my ears when she was responding, that she wasn't just some pawn that the White House was going to put in there to swing the election for President Trump. That is one thing where I think that her smooth was ruffled a little bit because she wasn't very prepared. She was very prepared. When I compare it to even just Brett Kavanaugh's hearings which, of course, took on a completely different tone when sexual assault allegations came to light. She sat there with an empty notepad. She wasn't shuffling papers in front of her. She had very clear answers. She was very well prepared.

That was the one time to me yesterday that stood out when she said she wasn't a pawn. That she seemed a little bit put off by the questions she was getting. Oh, one thing I did want to bring up before we leave is that she also used the words at one point yesterday, sexual preference instead of orientation. I saw some tweets about it and stuff like that. The 19th will hopefully have a story that gets to this out later today but sexual preference is a term used by an organization that she's been affiliated with. She's spoken about them, called the Alliance Defending Freedom.

It's viewed as an anti-LGBTQ group. This idea that preference is a choice instead of just it being your sexual orientation could have legal ramifications. While when it was brought to her attention, that that was offensive to some people, she did apologize but Amy Coney Barrett did not go into the legal ramifications of whether she believes that's proper terms and what could be behind that couldn't mean going forward in cases about LGBTQ rights.

Brian Lehrer: Yes, she did apologize, but who says that anymore? Somehow in her cultural context or something like that, people are still saying sexual preference rather than something indicating a more immutable, more just like this is who you are and not what you're choosing, a term like sexual orientation. All right. I know you got to go, can you give me like 15 seconds on why Democrats held this like a normal confirmation at all? Half the callers on our board want to ask why they're just boycotting, because there shouldn't be a nominee right now.

Amanda: I think that this Justice is probably going to get confirmed no matter what. They could sit the process out but that also seeds driving the conversation around

the Justice to a certain extent to Republicans. Democrats could have gone several different ways with Coney, they could have focused it mostly on abortion. They could have focused it mainly on her religion, and they chose to focus it on health care, and that is not accidental. Democrats won in 2018 on health care, and they took back the house.

In a lot of these competitive Senate races, they're hoping that healthcare is going to allow them to take back the Senate. It's an issue in the presidential race. By showing up for the hearing, albeit virtually, the Democrats are able to repeatedly for 11 to 12 hours a day, get her to talk about the Affordable Care Act, which is a topic that they think they have the higher ground on with voters, and it keeps that in the conversation in the final weeks before the election.

Brian Lehrer: Amanda Becker, Washington correspondent for The 19th. Thank you.

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